[2004] KEHC 72 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA AT NAIROBI (MILIMANI COMMERCIAL

COURTS)

Civil Case 773 of 2003

EQUIP AGENCIES LTD....................................... PLAINTIFF

VERSUS

CREDIT BANK KENYA LTD.......................... DEFENDANT

RULING

The plaintiff had filed an application for injunction in this matter butbefore the hearing thereof the defendant raised preliminary objection in thefollowing terms :-

1. That the said application and the entire suit is misconceived, bad inlaw and an abuse of this Honourable court's process.

2. That the plaintiff/applicant is barred in law from instituting thepresent suit as the matters therein have been adjudicated upon anddetermined in HCCC No. 1265 of 2002 as between the same partiesherein by a court of competent jurisdiction.

3. In the alternative but without prejudice to the foregoing, that thisHonourable court is barred from entertaining this suit in view ofthe pending earlier suit aforesaid.4. That the plaintiff/applicant is in breach of the applicable statutoryprovisions as it is not entitled to bring a separate suit at this orindeed any other stage and has further failed to serve thedefendant/respondent with the exparte interim order obtainedherein within the stipulated time or at all.

5. That the present suit should in all fairness and in the circumstancesbe struck out.

Counsel for the defendant before embarking on the main grounds ofobjection stated that he wished to start with objection to annextures attachedto the affidavit of DIVYESH I. PATERL sworn on 3rd December 2003.

Counsel Mr. Shitiva for the defendant said that annexture 'DIP' '6' ofthe aforesaid affidavit has not been signed by the commissioner of oaths.

The court looked at the said affidavit in the court file and confirmedthat the aforesaid annexture thereof was signed by the commissioner foroaths.

Mr. Shitiva on being informed that the said annexture in the court filewas commissioned, stated that the one served on him was not.

In the courts view the document which is material is the one placedbefore court and in the court file.

Accordingly since the court was able to confirm that the aforesaid annexture as seen in the court file is in conformity with Rule 10 of The Oaths And Statutory Declaration Rules, the objection raised by defence counsel therefore is defeated.

Counsel for the defendant raised a second issue with regards to service of the exparte order.

Counsel stated that the exparte order granted to the plaintiff was served upon the defendant outside the three days as per the Order XXXIX Rule 3(3).

It ought to be noted that counsel brought up this issue as a preliminary objection.

It is pertinent at this stage to quote the case:

MUKISA BISCUIT MANUFACTURING CO. LTD. VS WEST END DISTRIBUTORS LTD.

[1969] E.A. page 696.

There is a quotation in that case that will assist hereof as per law, J. A."So far as I am aware, a preliminary objection consist of a point oflaw and which if argued as a preliminary point may dispose of thesuit Examples are an objection to the jurisdiction of the court, or aplea of limitation, or a submission that the parties are bound by thecontract giving rise to the suit to refer the dispute to arbitration."

The quotation clearly shows that the objection raised by defencecounsel that the plaintiff failed, contrary to Order XXXIX Rule 3(3), toserve the exparte order within three days has no semblance of a preliminaryobjection.

The reason why the court so finds is because the very objection wouldrequire the court to consider the evidence of service which would probablybe contradictory and this obviously is not a pure point of law.

In regard to the first ground of objection counsel for the defence didnot make any submission thereof and the court will not consider it in thisruling.

Mr. Shitava started his argument by saying that the plaintiff is barredin law from instituting the present suit because the matters pleaded in thissuit were adjudicated upon in HCCC No. 1265 of 2002.

He said that the aforesaid case was with the same parties as in thispresent case and the issues were the same.

He further said that the said issues were determined in HCCCNo. 1265 of 2002 by a competent court and the plaintiff therefore cannot beallowed to resurrect the action in this suit.

Mr. Shitava stated that the present suit and the applications ought tohave brought in HCCC 1265 of 2002.

Ground 2 and 4(a) of the preliminary objection is essentially sayingthat the present suit is res judicata.

Section 7 of The Civil Procedure Act states as follows:-

"No court shall try any suit or issue in which the matter directly and substantially in issue has been directly and substantially in issue in a former suit between the same parties, or between parties under whom they or any of them claim, litigating under the same title, in a court competent to try such subsequent suit or the suit in which such issue has been subsequently raised, and has been heard and finally decided by such court"

The defendant's counsel submitted that the matters in this present suit and in HCCC 1265 of 2002 are substantially the same and the defendant was seeking that this suit be struck off for being res judicata.

The book of MULLA "The Code of Civil Procedure" 16th editionstates:-

".... the rule of res judicata........... the general doctrine is founded on consideration of high public policy to achieve twoobjectives, namely, that there must be finality to litigation and that the individual should not be harassed twice over thesame account of litigation."

The court notes that the parties in these two suits are the same.

The court has had the opportunity to look at the file of HCCC 1265 of2002.

The court has found that the plaintiff has raised the same issues on thewhole relating to the defendant's right to sell the charged property namelyELDORET MUNICIPALITY BOCK 10/34.

The court notes the parties on 22nd June 2003 entered consent inHCCC No. 1265 of 2002 which consent indeed concluded that suit thereof.There is indeed no issue that is yet to be decided.

The principle of res judicata is an inhibition against the court fromhearing a matter twice and it is a question of mixed fact and law.

The court finds that the only new issue raised by the plaintiff in thispresent suit is that the defendant intends to sell the charged property togetherwith furfunal manufacturing plant which is on the charged property.

The court finds that even in the earlier advertisement for sale bypublic auction of the charge property, that is in January 2003 the defendantincluded the furfunal manufacturing plant in the description of the property.

The plaintiff even though that description was there, failed whenfiling HCCC No. 1265 of 2002, to include this issue thereof.

The plaintiff therefore can be said to have omitted to sue orrelinquished that portion of its claim and in regard to Order II Rule 1 (2) theplaintiff is precluded from raising this issue in fresh suit. The particularorder states that:-

“Wherea plaintiff omits to sue in respect of or relinquishesany portion of his claim, he shall not afterwards sue in respectof the portion omitted or relinquished."

The operative word in that order is "shall not afterward sue".

This would mean that the plaintiff cannot sue a fresh in regard to thefurfunal manufacturing plant because it omitted to do so in the first suitHCCC 1265 of 2002.

Mr. Kingara, advocate for the plaintiff argued that this suit is not resjudicata because the issue hereof had not been raised in the previous suit.

In view of the court's findings herein above the court rejects Mr.Kingara's argument.

The court holds in regard to the prayers in the present plaint thatprayer (a) be struck out for being in contravention of Order II Rule 1(1) in that the plaintiff omitted or relinquished this claim when it excluded it inHCCC 1265 of 2002.

In regard to prayer (b) (c) and (d) the court is of the view that it iscaught by the rule of res judicata and accordingly the court has nojurisdiction to hear the same. Those prayers accordingly are hereby struckout.

On behalf of the plaintiff the court was referred to the case ofGEORGE W. W. OMONDI & ANOTHER - VERSUS - NATIONALBANK OF KENYA

OTHERS, (unreported) HCCC No.958 of2001.

The court find that, that case is distinguishable to the present becausein that case one of the previous suits had been withdrawn, another involveddifferent matter from what was at stake. Those two issues removed the casefrom the ambit of res judicata.

In this present case a decree was issued following a judgment byconsent in HCCC 1265 of 2002.

In the final analysis the court finds that the present suit and theapplication filed by the plaintiff thereof are caught by the rule of res judicataand Order II Rule 1 (2) and this suit is therefore struck out with costs to thedefendant.

It is so ordered.

Dated and delivered this 2nd March 2004.

MARY KASANGO

JUDGE